Avodah Zarah 72a (עב.) — the Talmud in English

And

we still find this difficult:

What does “not subject to restitution” mean?

That is, why is he not obligated to return the stolen property, even if it is worth less than a peruta? After all, he did not acquire it at all. The Gemara answers: Rav Yoḥanan intended to say

that

the property stolen from a gentile

is not subject to restitution.

That is, no obligation to return it takes effect upon him. Since the gentile did not acquire it at all, wherever it is found, it remains in the Jew’s possession.

The Gemara raises an objection:

If so,

if it is as you say, that the gentile did not acquire the stolen property at all,

say the latter clause: “If another person came and took it from him, he is killed on its account.”

And this is difficult:

Granted

with regard to

the first clause,

it is possible to say that the gentile is liable to be killed even though he did not acquire the stolen property,

because he caused distress to a Jew.

But

with regard to

the latter clause, what did he do?

After all, he stole nothing, and certainly he is not killed because he caused distress to his fellow gentile.

Rather, infer from this that pulling effects acquisition for a gentile!

And according to the Gemara’s conclusion, this is indeed so:

infer from this

that this is the halakha: a gentile acquires and transfers ownership through pulling.

The Gemara below cites additional laws derived from the statements of our Mishna:

There was an incident involving

a certain man who said to his fellow: “If I sell this land, I will sell it to you,”

and they performed a kinyan regarding his statement.

After some time,

he went

the seller

, and sold it to another person

and sold the field to another person.

Rav Yosef said: The first one acquired it

the first one acquired the field.

Abaye said to him:

Why did the first one acquire the field,

when he had not set a price?

When they acquired it from him, they had not yet agreed on the price of the field. If so, he had not fully resolved to transfer ownership of it to him.

And

in passing, the Gemara explains,

from where do you say

where did Abaye learn

that wherever one has not set a price, the buyer has not acquired it?

As we learned

in our Mishna

, “With regard to one who sells his wine to a gentile: If he set the price before measuring it, its money is permitted; if he measured it before setting the price, its money is forbidden.”

And it is clear that if they did not agree on the price, then even if they performed a kinyan, the buyer did not acquire it.

And from here Abaye challenged Rav Yosef’s statement: Why did the first one acquire it, when they had not agreed on the price in advance?

In any event,

what conclusion was reached?

That is, what is the ruling in the case under discussion? Will the first one acquire the land, as Rav Yosef said, or perhaps the second one, as Abaye maintained?

The Gemara answers:

What conclusion was reached?! As we said: Perhaps the stringency of unslaughtered wine is different.

That is, no proof can be brought from our Mishna. Perhaps even in a case where they did not agree on the price in advance, if they performed a kinyan, the kinyan is effective, and we do not suspect that he had not fully resolved to acquire it. Only with regard to yayin nesekh, because of its stringency, did the Sages rule stringently and prohibit the wine when the price had not been set in advance.

Come

and

hear

another proof of Abaye’s statement, that pulling without setting a price is ineffective:

For Rav Idi bar Avin said: There was an incident

that took place

in the house of

Rav Ḥisda, and Rav Ḥisda

learned from an incident that took place

in the house of

Rav Huna, and he resolved it from that which we learned

in tractate Bava Batra (85b): “With regard to one who sells produce to his fellow, and he sent him his animals and his workers loaded with produce: If the buyer

and pulled

his animals and his workers, and brought them into his house, whether he set

a price for him

before he measured

the grain

or he measured it before he set the price, he has not acquired it, and both of them may retract.”

The reason is as follows: If he set the price before measuring it, since the buyer did not pull the produce, he did not acquire it and may retract. Even though he pulled his workers and brought them into his house, this is not considered pulling. Since pulling people is ineffective, until he pulls the produce that they are carrying, he has not acquired it.

If he measured it before setting the price, even though he pulled the produce, his pulling is ineffective, since he did not set a price for it. This accords with Abaye’s statement, that pulling before setting a price is ineffective.

And if

he unloaded them

the seller or the buyer

and brought them into his house

the buyer’s house,

and

set

a price for him, even

before he measured it, neither of them may retract.

Since the buyer’s domain acquired the produce for him.

But if he

measured it before setting the price,

since he did not set the price, the acquisition did not take effect, and

both of them may retract.”

And from here there is proof of Abaye’s statement, that pulling without setting a price is ineffective.

There was an incident involving

a certain man who said to his fellow: “If I sell this land, I will sell it to you for one hundred dinars

if I sell this land, I will sell it to you for one hundred dinars.”

And they performed a kinyan between them regarding this undertaking.

After some time,

he went and sold it to another person for one hundred and twenty.

He went and sold the land to another person for one hundred and twenty dinars.

Rav Kahana said: The first one acquired it.

The first one acquired it, and he must give him one hundred dinars, since they had set a price and performed a kinyan.

Rav Yaakov of Nehar Pekod challenged this: “Those additional dinars compelled him!”

That is, the undertaking was that if he wished to sell the land at its value, he would sell it to the first one. But here, had the second one offered him one hundred dinars, he would not have agreed to sell it; he agreed to the sale only because the second one offered him more than its value. It follows that the higher price caused him to sell the land against his will. Since he did not sell the land willingly, the second one acquired it, and not the first one.

And the halakha is in accordance with Rav Yaakov of Nehar Pekod.

Incidentally, additional laws relevant to this matter were cited:

If he said to him, “As three assessors assess it,”

that is, one who says to his fellow, “I will sell you this land at the price at which three people will assess it”: Since he used the expression “an assessment by three,” he certainly intended an assessment by a court. Therefore

even two out of three

are sufficient. Even if all three did not agree on one price, but two stated a lower price and the third a higher price, or the reverse, one follows the majority.

But if he said, “I will sell you this land

as three people say

as three people will say,”

he certainly did not intend an assessment by a court. Therefore

until they say it as three.

That is, the price will be established only if all three agree on one price.

And similarly, if he said, “I will sell you this land

as four assessors assess it

as four people will assess it,”

since he added opinions beyond the number of members of a court, he certainly intended that the price be established

until they say it as four.

Until all of them state one price; the majority is not followed.

And all the more so where he said to him, “As four people say,”

for he did not intend an assessment by a court, but rather that all of them must state one price.

And if

he said to him, “

I will sell you this land

as it is assessed

at the price at which it will be assessed

by three,” and three came and assessed it, and the other one said to him

the seller,

“Let three others come who are more expert”

bring three others who are more expert, and let us establish the price according to their assessment.

Rav Pappa said: Legally, he may prevent it.

That is, the seller may prevent him from proceeding and require him to have the land assessed by three other people.

Rav Huna, son of Rav Yehoshua, challenged this: “From where do you know that these latter ones are more expert? Perhaps these ones are more expert?”

How do we know that the latter ones are more expert than the first ones? Rather, certainly he cannot prevent him from proceeding, and the price will be established according to the initial assessment.

And the halakha is in accordance with Rav Huna, son of Rav Yehoshua.

Mishna:

Our Mishna presents additional laws concerning one who sells wine to a gentile.

One who sells wine to a gentile, and

took the funnel and measured

wine

into the gentile’s flask, and then measured again

wine with that same funnel

into a Jew’s flask: If there is a residue of wine in it,

if a small amount of wine remained at the bottom of the funnel from the wine that he poured for the gentile, the wine that he poured for the Jew

is forbidden.

A gentile

pouring from a vessel

that contains kosher wine

into a vessel

of yayin nesekh

, the wine that he poured from it is permitted, while the wine that he poured into it is forbidden.

This will be explained in the Gemara.

Gemara:

We learned there

in tractate Taharot (chapter 8, Mishna 9)

: “A cascading stream

a flow of water falling from above to below

and a steep slope

water descending down a steep incline,

and liquid that is wet

but not wet enough to make another object wet—for example, if one touches it with his hand, no liquid capable of wetting another object will rise onto it—

are not considered connected with regard to impurity,

for example, if an impure person touches the lower part of the cascading stream or the steep slope, the upper part remains pure. Or, if there is liquid here and liquid there, with liquid that is wet but not wet enough to make another object wet between them, and an impure person touches the liquid in the middle, the liquids on either side remain pure.

Nor with regard to purification.

For example, if there were two ritual baths, and one of them did not contain forty se’a, but there was a cascading stream, a steep slope, or liquid that is wet but not wet enough to make another object wet connecting them, it is not considered a connection, and one who immerses in the deficient ritual bath has not achieved a valid immersion.

But

a depression,

that is, a hollow in which water has collected, is

considered connected

both

with regard to impurity,

for example, if there were two bodies of liquid and a depression connected them, and an impure person touched one of them, the other also becomes impure;

and

both

with regard to purification,

for example, two ritual baths, one of which does not contain forty se’a, with a depression between them: both are valid.”

The Gemara cites a discussion that took place in the beit-midrash concerning the Mishna in Taharot:

Rav Huna said: A cascading stream, a steep slope, and liquid that is wet,

although they are not considered connected with regard to impurity or purification, nevertheless they are

considered connected with regard to yayin nesekh.

For example, if one poured wine from a kosher vessel into a vessel containing yayin nesekh, even the wine in the upper vessel becomes forbidden because of the cascading stream connecting them.

Rav Naḥman said to Rav Huna: From where do you derive this?

From where did you learn this law?

If you say, from that which we learned

if you learned it from the above Mishna:

“A cascading stream, a steep slope, and liquid that is wet but not wet enough to make another object wet are not considered connected with regard to impurity or purification,”

and you inferred that the Mishna implies that only

with regard to impurity and purification is it not

that a cascading stream, a steep slope, and liquid that is wet but not wet enough to make another object wet are considered

connected; with regard to yayin nesekh, they are considered connected.

This can be rejected:

Say the latter clause,

meaning that the latter clause proves that no inference can be drawn from the first clause, since we learned in the latter clause:

“A depression is considered connected with regard to impurity and purification.”

If so, if we also infer from the latter clause and say that only

with regard to impurity and purification is it considered connected, but with regard to yayin nesekh it is not considered connected,

the first clause and the latter clause would contradict one another: In the first clause, yayin nesekh would be more stringent than impurity and purification, whereas in the latter clause, impurity and purification would be more stringent than yayin nesekh!

Rather,

certainly,

nothing can be inferred from this.

Since this Mishna allows one to infer a statement and its opposite, the tanna certainly did not formulate his words with such precision, and halakhot cannot be derived from inferences based on his wording.

The Gemara seeks another source for Rav Huna’s statement:

We learned:

we learned in our Mishna:

“He took the funnel and measured

wine

into the gentile’s flask,